Why David Hicks must win

No, this is not about winning a literary competition; this article has nothing to say about that controversy.

It has to do with something far more serious, and sufficiently important to unite conservative and liberal politics, as Chris Berg, research fellow with the Institute of Public Affairs, has recently argued. If we value free speech on political issues then Hicks must win his fight to retain the earnings from publication of his book.

The legislation which gives the Commonwealth Director of Public Prosecutions power to take away this income rests in theory on two general principles, quite apart from its political appeal to those convinced Hicks was a terrorist who got pretty much all - with the possible exception of torture - he deserved.

The first principle is the need to deter crime by ensuring an offender cannot simply wait out the sentence or, in a business crime, endure the public shame, and still enjoy the riches. The second is a broad principle of retributive fairness - also a well-settled principle of the common law - that no-one should profit from his own wrong.

It is bizarre to suggest that Hicks, who trained for and was ready to risk his life fighting in Kosovo (along with NATO forces) for no financial reward - whatever we think of his motives or maturity or racial prejudices or state of mind - would be deterred by the risk of losing earnings on a book published years later to defend himself against terrorism charges; deterrence is simply not an issue.

The principle of fairness has a qualified role because, like all legal and moral principles, it has a dimension of weight - it must be weighed against other principles which are also important in a legal system or moral practice. Accordingly, while it is clear in law that a murderer cannot benefit under his victim's will, it is also clear that a lottery cannot refuse to pay if the ticket is bought by someone who drove an unregistered car to the store, or earned their income from prostitution; the legal principle of fairness, which lawyers call pacta sunt servanda, is more important.

Even when governments think it is wrong for someone to profit from crime, they must make prudential judgments in using public resources to pursue this retributive aim. Although Chopper Read was not pursued for the income from his literary efforts, public morale and a sense of civic responsibility may be affected if drug lords and white-collar criminals are seen to maintain sumptuous lifestyles.

Confiscation of assets makes sense in reinforcing deterrence; it also helps defray the costs of fighting conspiratorial crime. None of this is relevant, however, if it cannot be shown that Hicks's actions also constituted a crime in Australian law.

Returning to the big picture, it is obvious that the argument over Hicks's conduct and treatment, and whether his plea was gained by duress, continues because the facts are still being clarified. But we now know from the authoritative Denbeaux Study on Guantanamo by US Law Professor Mark Denbeaux of Seton Hall Law School, based on US government files obtained under disclosure laws, that detainees known to be innocent were threatened with permanent incarceration if they did not 'confess'.

We know that Afghan citizens were detained as terrorists if found to be wearing olive drab clothing or a Casio watch. We know that 92 per cent had never fought for Al Qaeda and that only 5 per cent were captured by US troops - the rest were purchased from Pakistani and Northern Alliance forces for amounts up to $US5,000. Given the Alliance had just lost a savage civil war against the Taliban, and the local value of US currency, their motives and claims were always dubious.

So much so that after nine years, of the more than 770 detainees in Guantanamo, only a handful have been tried and convicted; over 700 have had to be quietly repatriated without charge, after years of imprisonment and 'harsh techniques' of interrogation. What this means is detailed in the November 2008 report by the US Senate Committee on Armed Services; it means the use of methods

based, in part, on Chinese Communist techniques used during the Korean war to elicit false confessions, include stripping … of their clothing, placing them in stress positions, putting hoods over their heads, disrupting their sleep, treating them like animals, subjecting them to loud music and flashing lights, and exposing them to extreme temperatures. It can also include face and body slaps and until recently, for some who attended the Navy's SERE school, it included waterboarding.

This is typical of the evidence, gained under FOI laws, which has seen the Law Council of Australia take a close interest in Hicks's case and play a prominent role in bringing his plight to public attention. Throughout his detention the council has been highly critical of his inability to effectively challenge its legality and his treatment in detention, as well as the flawed and unjust rules of procedure and evidence contrived for the military commission.

It has criticised the lack of any legal foundation for the original charges, the retrospective nature of the charge pursued, and government acquiescence in Hicks's detention without charge and trial by the commission. It has criticised the terms of his plea agreement and the imposition of control orders on his release. It issued more than 20 press releases, letters to Parliament and reports, including three reports from its Independent Observer at Hicks's trial.

When the senior body of the legal profession takes a strong public stand on the propriety of government treatment of an Australian citizen, we can be reasonably sure this is not an open and shut case, notwithstanding a relentless focus by pro-government and pro-war opinion writers on Hicks's personal idiosyncrasies. This focus is in part driven by the media, which then reports what politicians and others say; it provides arresting headlines but little if any analysis.

No-one is really surprised. David Hume warned long ago that man's reason is slave to his passions and we know the reverse is just as true - that his passions are themselves fuelled and guided by ideas. But no aphorism is likely to resolve this question of political morality - whether the Government has a right to use legislative means to deprive Hicks of income from his book.

While there is a strong case that it has no moral right, there is a much clearer case that it has no such legal right. The core of this argument - the priority of freedom of speech - is the same; but whereas moral claims must appeal, controversially, to community values, the legal case rests on the Commonwealth Proceeds of Crime Act, under which judicial discretion to make a Literary Proceeds Order (to confiscate assets) must consider the public interest in access to the material.

More importantly, it also rests on a constitutional principle explained by the High Court of Australia in a unanimous ruling destined to be celebrated in textbooks as a triumph of Australian jurisprudence, ranking with leading decisions on rights by the US Supreme Court. This case, well known to media and defamation lawyers, is the July 1997 judgment in Lange v ABC.

The case arose from a defamation action by a former New Zealand prime minister, David Lange, against the Australian Broadcasting Corporation for allegations made about him on a current affairs program.

The High Court ruled that freedom of political communication is implicit in the system of representative and responsible government outlined in the constitution. It does not establish a right of free speech, but limits the power to censor what can be said on 'political' matters. The court ruled that this freedom extends to what is necessary for the effective operation of the system of government provided for by the constitution, and set out a two-part test:

Does the law effectively burden freedom of communication about government or political matters?

If the law does burden that freedom, is it reasonably appropriate and adapted to serve a legitimate end which is compatible with the maintenance of representative and responsible government?

Confiscating income will in principle constrain Hicks's freedom of communication, since the proceeds of sale are ordinarily the only way to recoup expenses incurred in telling his story and defending his reputation, after years of condemnation by the local and world press and by both major political parties.

The second part of this test will be more controversial, but there is no space to pursue the arguments here. What is likely to be crucial is that the issue of public interest - whether legal and political institutions were subverted by a foreign policy allowing wrongful detention and abuse - remains unresolved and, without a formal investigation, Hicks's book is central to this issue.

Readers must ask themselves whether his financial persecution is compatible with the public's right and need to know both sides of this story in order to judge the performance of the politicians they elected; our ability to make this judgment after hearing all the evidence is, in the end, crucial to the maintenance of 'representative and responsible government'.

Max Atkinson is a former senior lecturer of the Law School, University of Tasmania.